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December 2011 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

by Yvonne Frederiksen

Discrimination
A provision in a German collective agreement requiring pilots to retire at 60 was incompatible with the Equal Treatment Directive.
Under the Equal Treatment Directive, employers are not allowed to discriminate against employees because of their age. But derogation from this principle is allowed if the aim is legitimate and the means of achieving it is proportionate. In a recent case, one of the issues before the EU Court was whether a provision on compulsory retirement in a German collective agreement fell within the derogation provided for in the Directive.
The case concerned three German pilots. They were covered by the same collective agreement, which required pilots to retire at 60. The three pilots believed the provision of the collective agreement was contrary to German law and the Directive because the retirement age for pilots under German and international law was 65.
But the German court was not quite sure whether the provision fell entirely outside the scope of the Directive or within the derogation provided for in the Directive. It therefore decided to seek guidance from the EU Court.
 
Discriminatory provision
The EU Court started out by establishing that, because of the provision, German pilots aged 60+ were treated less favourably than their younger colleagues as a direct result of their age. It also stressed that provisions of collective agreements must comply with the Directive.
The EU Court then considered the question of whether the provision could be deemed to be a public security measure, in which case it would fall outside the scope of the Directive. On that point, the EU Court held that the age limit was an appropriate measure to protect public security because it was intended to ensure that pilots were fit to fly. But the provision in the collective agreement went beyond what was necessary to ensure public security because neither German nor international law sets the age limit at 60.
Thus, as a starting point, requiring pilots to meet certain physical standards is a legal occupational requirement, and public security is a legitimate aim to pursue. But the age limit set by the collective agreement was disproportionate because German and international law allows pilots to fly until the age of 65, subject to certain conditions.
On those grounds, the retirement age stipulated in the collective agreement was incompatible with the Directive.
 
Norrbom Vinding notes:
  • that the case shows that the EU Court will most likely look at age limits set by national as well as international law when considering the legality of an age limit in a collective agreement.
The above does not constitute legal advice and should not be relied upon as such

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